Hillers v. Taylor
| Decision Date | 15 May 1908 |
| Citation | 69 A. 715,108 Md. 148 |
| Parties | HILLERS v. TAYLOR. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Prince George's County; Geo. C Merrick, Judge.
Action by Elizabeth V. Taylor against Floried H. Hillers. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.
J. W McNeill, for appellant.
George P. Hoover, T. Van Clagett, and S. Marvin Peach, for appellee.
This appeal is from a judgment of the circuit court for Prince George's county against the appellant for damages for alienating the affections of the appellee's husband and persuading him to abandon her. There are three bills of exceptions in the record, of which two are to rulings on the admissibility of evidence, and the third is to the court's action on the prayers. The declaration contains two counts, the first charging the defendant with criminal conversation with the appellee's husband resulting in the alienation of his affections, and the second charging her with having caused the alienation and abandonment by wrongful and wicked persuasion and the practice of alluring arts upon him, well knowing him to be the husband of the appellee. There is evidence in the record tending to show the following facts: The appellee and her husband, Albert A. Taylor, were married at Ocean Grove, N. J., in the year 1877, and lived happily together in that vicinity until the spring of 1905 when the husband came to Contee in Prince George's county and went into the sand and gravel business with the Contee Sand & Gravel Company. He remained engaged in that business at Contee until the institution of this suit, boarding and lodging at the house of the appellant, Floried H. Hillers, and her husband, Charles W. Hillers. In May, 1905, the appellee, Mrs. Taylor, paid a visitof one day to her husband at Mrs. Hillers' house in Contee, and on June 18th she went there again to visit her husband and remained until July 5th, when she returned to her home in New Jersey upon the representation made by her husband that it would be too hot for her to remain in Contee for the remainder of the summer. There is further evidence tending to prove the existence of intimacy and improper relations between Taylor and Mrs. Hillers during his residence at her house, and that he lost his affection for his wife and abandoned her.
The two exceptions to rulings on evidence rest on similar grounds, and will be considered together. The appellee, as plaintiff below, to support the issue on her part, testified that on June 18, 1905, on her second visit to her husband at the Hillers' residence in Contee, when she was about to retire with him for the night, she noticed that there was but one bed in the room assigned for her occupancy, and asked him why two beds could not be put in the room, as prior to his coming to Contee they had always been in the habit of occupying separate beds in the same room. He replied that he was going to sleep in another room. Thereupon the plaintiff's counsel put to her the question, "State what reason your husband assigned for not having two beds in the room?" and she answered, "He said Mrs. Hillers objected to it." The defendant by her counsel objected to the question and answer on the ground that it was hearsay evidence and consisted merely of the opinion of Taylor expressed out of the presence of the defendant, and moved to strike out the answer, but the court overruled the objection and motion, and admitted the evidence, the counsel for the plaintiff stating that it was offered solely for the purpose of showing the state of Taylor's feelings toward his wife at that time. To that ruling of the court the defendant took her first exception.
The second exception was taken to a similar ruling made by the court under the following circumstances: The plaintiff further testified in her own behalf that early in November, 1905, after having again called to see her husband at the defendant's house at Contee station and failed to find either him or the defendant there, she went to the home of her son in Baltimore city, where her husband came to see her on the following day; that at an interview had with her husband at that time she implored him to return to her that they might live together, as she reminded him that they had done happily for 30 years theretofore, and offered to go to Contee with him and to buy a lot there and build a house on it in which they could live, but he replied that she could not buy any property in the vicinity of his works; that she then offered to go and live with him at the home of the defendant, but he replied that "Mrs. Hillers [the defendant] did not want her there." To this statement of the witness the defendant objected, and moved the court to strike it out for the same reasons relied on in reference to the testimony forming the basis of the first exception, but the court overruled the objection and motion, and allowed the testimony to go to the jury upon the same ground mentioned in the first exception.
In our opinion the learned judge below erred in allowing the testimony covered by these two exceptions to go to the jury. Assuming that Taylor made the statements to his wife ascribed to him in her testimony, his conduct in so doing was undoubtedly indicative of indifference toward her on his part, and, if he were the defendant in an action in which the state of his feelings toward her were material to the issue, the statements might be admissible against him. But the present suit is not against him. It is against Mrs. Hillers, and the alleged statements profess to describe her attitude toward the plaintiff. If they be regarded as expressions of Mr. Taylor's opinion of what were the wishes or preferences or attitude of Mrs. Hillers toward the plaintiff, as they seem to us to have been, they should have been stricken out under the rules of evidence which ordinarily exclude the opinions of witnesses other than those of experts, especially when unaccompanied by a statement of facts affording a reasonable foundation for them. The law regards such evidence as being irrelevant and derivative in its nature, and not furnishing safe or reliable aid to the jury in arriving at a proper conclusion. We have had occasion to discuss and apply the rule against the admissibility in evidence of non-expert opinions in the recent cases of Tall v. Steam Packet Company, 90 Md. 248, 44 A. 1007, 47 L. R. A. 120, Tucker v. Johnson, 89 Md. 477, 43 A. 778, 44 A. 1004, 46 L. R. A. 181, and Berry Will Case, 93 Md. 579, 49 A. 401, where our views upon the subject have been fully expressed. If, on the other hand, the statements of Taylor thus admitted in evidence by the court below be considered as repetitions of declarations made to him by the defendant, they were inadmissible against her under the fundamental rule against the admission of hearsay evidence, for it is not claimed that they were made in her presence and hearing. That rule of evidence has also received full consideration at our hands in the recent case of Baumgartner v. Eigenbrot and Wife, 100 Md. 512, 60 A. 601, under circumstances not unlike those presented by the record now before us. In that case Eigenbrot and his wife were sued for damages for an alleged abduction of a female infant about 17 years of age. The court there refused to admit in evidence for the plaintiff statements alleged to have been made to the witnesses out of the presence and hearing of the defendants by the infant in reference to promises made to her by one of the defendants to induce her to go to live with them, and we affirmed the ruling upon an appeal.
The appellee, in her brief filed since the hearing of the appeal contended that as the evidence excepted to was not offered and admitted for the purpose of proving the misconduct of the defendant with the plaintiff's husband or the alienation of his affections, but solely for the purpose of showing the state of his feelings toward his wife, and the purpose for which it was offered was openly stated in the presence of the jury, it was admissible for that purpose under a well-defined exception to the rule against hearsay which makes such evidence competent in suits like the present one to show ...
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